April 2010

April 30, 2010

One of Solicitor General Elena Kagan's assets as a potential Supreme Court nominee is said to be her collegiality across the political spectrum. That bonhomie was on full display Thursday as she heaped praise on Justice Anthony Kennedy at an award ceremony put on by Georgetown University Law Center's Supreme Court Institute.

Kennedy was being honored by the institute for his contributions to the Court and to civil discourse at the Court and beyond. Maureen Mahoney, of counsel at Latham & Watkins, led off with praise for Kennedy's "passion for the Constitution" and for "setting the standard for judicial temperament."

Kagan spoke next, saluting Kennedy for "his independence, his deep convictions about the importance of freedom ... for the rule of law." Kennedy's opinions, she said, "don't fall into any line," instead reflecting that "he has charted his own course." His decisions, she said, "are the product of extraordinarily deep care and consideration and thought."

Still viewed widely as the front-runner for the high court nomination, Kagan made no mention of the vacancy or of the speculation. At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy "for the rest of my career as an advocate" -- not a formulation you would expect from someone who thought that career will end in a few months with her confirmation to the high court.

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court -- or any court -- last September in Citizens United v. Federal Election Commission. That's the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had "a bit of a bad habit," namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was "inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati." (See page 41 of the transcript.) Perhaps many advocates know those cases, Kagan said, but "I at any rate did not." She added, "There was a look of panic on my face."

Without knowing for sure, Kagan said she believes that Kennedy "saw in the flash of an instant that ... I really had no clue" about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases -- which relate to facial challenges to statutes under the First Amendment -- with enough detail that Kagan was able to recover and answer the question.

Kennedy's kind rescue, Kagan said, showed that the justice had "sensitivity to my plight" and confirmed his "fundamental decency and abiding humanity."

Kennedy thanked the institute for the honor, and congratulated the institute for its work in fostering "rational, decent, progressive discourse" at the Court. Among other things the institute, now in its 11th year, runs practice moot courts for advocates in almost all of the Court's argued cases -- 75 out of 77 this term alone, using 164 volunteer "justices," according to executive director Pamela Harris.

Goldman Case Goes Criminal:The New York Times reports that the Securities and Exchange Commission, which has filed a civil suit against Goldman Sachs, referred its investigation to prosecutors for the Southern District of New York, which has now opened its own inquiry. Goldman has vigorously denied the accusations by the S.E.C., which accused Goldman of defrauding investors involved a complex mortgage deal.

A Justice Who is Already on the Bench? A new Washington Post-ABC News poll shows that judicial experience is the most valued quality among a list of professional and personal characteristics. Seven in 10 say service as a judge is a positive quality for a Supreme Court nominee, while only 5 percent see it as a negative. In contrast, 35 percent view experience outside the legal world as a positive.

Arizona Immigration Law Fuels Lawsuits: Yesterday, the first lawsuits in a planned wave of legal challenges to the controversial Arizona immigration law, USA Today reports. In Phoenix, the National Coalition of Latino Clergy and Christian Leaders said the new law illegally interferes with the federal government's immigration enforcement responsibilities and would spur "racial discrimination." In Tucson, city patrol officer Martin Escobar charged that provisions for police to question suspects about their immigration status "would seriously impede law enforcement investigations."

Tears of the General Counsel: Scott Rothstein's former law firm general counsel cried Thursday as he recalled how he discovered his boss had committed a fraud of epic proportions, the Daily Business Review reports. David Boden, who worked for Rothstein Rosenfeldt Adler for 18 months before it imploded last November, testified in a deposition about discovering the $1.2 billion Ponzi scheme. He was the subject of an all-day deposition by Fort Lauderdale attorney Chuck Lichtman of Berger Singerman, which represents trustee Herbert Stettin in the firm's bankruptcy.

Oil Spill Reaches Louisiana Coast:The Times-Picayune reports that last night the oil slick from the well in the Gulf of Mexico that exploded on April 20 reached the tip of Plaquemines Parish, Louisiana. Louisiana Gov. Gov. Bobby Jindal declared a state of emergency Thursday after the Coast Guard confirmed that the undersea well was spewing five times as much oil as previously thought and that it was leaking from three spots instead of two. The National Law Journal reports that Daniel Becnel Jr., who is also caught up in Toyota's unintended-acceleration litigation, filed a class action on Thursday over damages caused by the drilling rig that exploded.

Camden Yard's Makeover Guru:The New York Times has a profile of the woman responsible for leading the renovation of Camden Yards, the stadium home of the Baltimore Orioles. Janet Marie Smith, one of the people most closely associated with the park’s initial success, faces the challenge of not infringing on the iconic nature of the sports venue while at the same time trying to squeeze as many dollars as she can out of its suites, club seats, signage, concession stands, and parking lots.

April 29, 2010

According to this year's Am Law 100 report, Washington-based firms fared much better than many of the nation’s largest firms did in 2009. Nationwide, Am Law 100 firms saw gross revenue fall 3.4% last year. But in Washington, gross revenue slipped just 1.8%.

The results of The American Lawyer's annual analysis of the nation's highest grossing law firms reflect the toll that the steepest economic decline in decades took on the legal industry. That said, as American Lawyer editor-in-chief Aric Press points out, it could have been worse.

The 11 Washington-based firms on the list were largely expected to have a better year than most major legal markets given the emphasis many of those firms place on litigation and regulatory practices, which tend to be recession resistant.

Wilmer Cutler Pickering Hale and Dorr retained its perch atop the list in terms of gross revenue, bringing in $941 million in 2009. Wilmer’s revenue last year was down 1.5% from the $955 million reported in 2008. Wilmer’s revenue per lawyer also dropped 1.5%, going from $1.03 million to $1.01 million in 2009. Wilmer’s profits per equity partner climbed 6.9%, jumping from $1.08 million to $1.16 million.

Wilmer’s co-managing partner William Perlstein said today the firm’s dip in revenue came as a result of reduced work in the transactional practices. He has attributed the increased PPP to "at least a dozen" partners leaving the firm to join the Obama administration and steady workflow in the intellectual property litigation, securities enforcement, antitrust, and regulatory practices. "Last year was a good year because we had plenty of work in some of our key practice areas, and we were able to focus on costs and keeping our headcount where it needed to be," Perlstein said.

One of the bills, the Sunshine in the Courtroom Act, would allow chief district and appellate judges to permit cameras in court. That bill asks the Judicial Conference to devise guidelines that judges can use in deciding whether to permit cameras. And the bill also instructs the Judicial Conference to craft guidelines that address the protection of undercover officers and crime victims, among other people.

A sponsor of the bill, Sen. Chuck Grassley (R-Iowa), said in a statement today: “Letting the sun shine in on federal courtrooms will give Americans an opportunity to better understand the judicial process. This bill is the best way to maintain confidence and accountability in the judicial system and help judges do a better job.”

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said in a statement that the federal courts have "lagged behind" Congress and its committees when it comes to televising proceedings.

"The bills advanced by the Judiciary Committee will allow more Americans to witness the Federal courts’ public proceedings," Leahy said. "This is an important issue, and one I hope the Senate will consider this Congress."

The judiciary committee also passed a bill and a resolution that address camera access in the Supreme Court. The bill would require the Court to televise oral arguments unless the Court voted, in a particular case, to prohibit live coverage. The resolution expressed the sentiment that the Supreme Court should televise oral arguments. The bill and resolution passed 13-6.

“Television coverage of the Supreme Court is long overdue, and I’m pleased that the Committee made progress on this front today,” Sen. Arlen Specter (D-Pa.) said in a statement today. Click here for Specter's remarks earlier this month on Supreme Court cameras.

C-SPAN general counsel Bruce Collins said in a statement today “we continue to advocate for television coverage of Supreme Court oral arguments, as we have for greater openness of America’s government in general. It is encouraging to see the increasing number of Senators on the Judiciary Committee who share our view.”

The USTelecom Association has brought in the big guns, hiring former Solicitor General Seth Waxman to head off a potential move by the Federal Communications Commission to reclassify broadband as a Title II telecommunications service like telephones.

"I'm not a telecom expert - or at least not yet," the Wilmer Cutler Pickering Hale and Dorr partner said in a conference call with reporters yesterday. Instead, his task was to look at the move “largely from an administrative law perspective – how much leeway an administrative agency has to make changes in the way it regulates without any statutory change or other indication Congress intended such a change,” he said.

Media watchdog and consumer groups are urging the FCC to reclassify broadband as a Title II service. Doing so would cement the agency’s authority to regulate Internet service in the wake of a D.C. Circuit decision earlier this month that has cast it in doubt.

The agency is currently considering new rules on net neutrality and has unveiled a comprehensive national broadband plan. After the Comcast decision, the FCC extended the deadline to file comments, posting more than 10,000 submissions on its website in the last two days alone.

Waxman’s April 28 comments on behalf of the broadband trade association stressed that reclassification “would surely be met with skepticism by a reviewing court, and the odds of appellate reversal would be high—particularly given significant industry reliance on the Commission’s prior, deregulatory interpretation of the same statutory scheme.”

“Administrative agencies are charged with implementing the law, not with assuming for themselves the legislative authority that the Constitution vests in Congress,” he wrote. “The Commission would be—for the first time ever and with no action by Congress extending a common carrier regime, designed for the monopolist telephone market of the early twentieth century, to a dynamic Internet marketplace.”

So what does Waxman think the FCC should do? “My advice would be to go to Congress,” he said. “There the various regulated entities on all sides would be heard.”

He also said that he didn’t read the D.C. Circuit opinion as “stripping the commission of its Title I ancillary jurisdiction... the D.C. Circuit itself in the last few paragraphs identified some basis for ancillary jurisdiction... the door is open.”

President Barack Obama today nominated U.S. District Judge Patti Saris to chair the U.S. Sentencing Commission and Commissioner Dabney Friedrich to serve a second term.

Since 1994, Saris has sat on the U.S. District Court for the District of Massachusetts. She has also been an associate justice on the Massachusetts Superior Court and an attorney in the U.S. Department of Justice’s Civil Division.

If confirmed by the U.S. Senate, she would replace Judge William Sessions III. Sessions, who was first confirmed to the commission in 1999, must leave because he has already served two terms. His second term expired Oct. 31.

Friedrich, who was first nominated to sit on the commission by President George W. Bush in 2006, has been an associate White House counsel, counsel to Sen. Orrin Hatch (R-Utah) and an assistant U.S. attorney for the Southern District of California and the Eastern District of Virginia.

A congressional response to the Supreme Court’s controversial Citizens United ruling in January moved a little closer to reality today with the introduction of the so-called DISCLOSE Act in the House and Senate.

The Court’s 5-4 decision in Citizens United v. Federal Election Commission lifted a ban on the use of corporate general treasury funds for independent expenditures in federal elections. The ruling triggered an unabated torrent of words between its corporate supporters and its campaign finance reform opponents.

That verbal battle continued today. The DISCLOSE Act (Democracy is Strengthened by Casting Light on Spending in Elections) was introduced in the House by chief sponsor Rep. Chris Van Hollen (D-Md.), and in the Senate, by chief sponsor Sen. Charles Schumer (D-N.Y.). The lawmakers said they hoped Congress would act on the legislation by the end of July.

The main focus of the legislation is disclosure. It would impose comprehensive new disclosure requirements on corporations, labor unions, trade associations and non-profit advocacy groups that spend money for independent expenditures or electioneering communications to influence federal elections.

Among the requirements, the CEO of a corporation or head of any other “covered” organization would have to personally appear in the organization's independent expenditure or electioneering communication TV ads and take responsibility for the ad by stating that the corporation or other organization approves the message. The same statement must be read by the CEO or head of the organization in a radio ad. The legislation also requires the top funder of a TV or radio ad also to appear in the ad and take responsibility.

Foreign corporations with domestic subsidiaries, federal contractors, and TARP recipients who have not repaid their funds would be banned from spending their money on politics.
Here are some of the statements today by business and reform groups reacting to the legislation:

U.S. Chamber of Commerce President Thomas Donohue: “With unemployment near 10% and millions of Americans out of work, Congress should be more concerned about creating jobs than protecting their own. It’s no coincidence that Rep. Van Hollen is the chair of the Democratic Congressional Campaign Committee and Sen. Schumer is immediate past chair of the Democratic Senatorial Campaign Committee. Sen. Schumer even admits his legislation is designed to ‘impact’ this fall’s elections ‘as much as possible.’”

Theodore Olson, partner in the Washington office of Gibson, Dunn & Crutcher, and winning counsel in Citizens United: “Though it comes wrapped up in language of ‘transparency,’ the plain intent of the Schumer and Van Hollen legislation—the purpose invoked by its sponsors—is to discourage people from exercising their constitutional right to free speech. One can understand why today's party leaders may want to silence discussions on their continued fitness for office, but the First Amendment simply does not tolerate it.”

Center for Competitive Politics President Bradley Smith: “The First Amendment says ‘Congress shall make no law… abridging the freedom of speech,’ not ‘Congress should protect some speech, but feel free to hyper-regulate the political speech of businesses and nonprofits.’”

Brennan Center for Justice attorney Ciara Torres-Spelliscy: “A key piece of Schumer -Van Hollen's bill is disclosure -- which is the least that we can ask of corporations in the new post-Citizens United era. Another important piece of legislation now moving through Congress is the Shareholder Protection Act, which would give shareholders a chance to see how their money is being spent in a political context they may or may not support.”

Democracy 21 President Fred Wertheimer: “The Chamber of Congress has attacked the legislation introduced today, claiming it will muzzle and or demonize independent voices from the election discussion.’ As the Supreme Court said in the Citizens United case, however, disclosure and disclaimer requirementsdo not prevent anyone from speaking,’ and disclosure `permits citizens and shareholders to react to the speech of corporate entities in a proper way.’”

People For the American Way President Michael Keegan: “Only a constitutional amendment or new ruling can truly 'fix' Citizens United, but the DISCLOSE Act goes far in mitigating its corrosive effect on our democracy. Americans want government by the people, not corporations. But as long as corporations have the ability to pour money into elections, Americans have the right to know how that money is being spent.”

James Kaufman has been trying for six years to renounce his citizenship, pressing Justice Department officials and other government agencies to let him cut his ties to the United States.

Kaufman, a 36-year registered sex offender who is locked up in state prison in Wisconsin, says in court papers in Washington that he is entitled to renounce his citizenship inside the United States during a state of war. Typically, a person can only renounce citizenship outside of the United States.

Ever since Kaufman filed a pro se suit (.pdf) in August 2005 in the U.S. District Court for the District of Columbia, the Justice Department has fought Kaufman’s effort to shed his citizenship while still in the country. And now that fight has gone to the U.S. Court of Appeals for the D.C. Circuit, where DOJ is challenging a ruling that favored Kaufman.

DOJ lawyers make one main point: that the United States is not in a “state of war,” as it is used in the Immigration and Nationality Act (1952), and therefore Kaufman (pictured at left) fails to meet the requirements of the federal law.

Earlier this year, Judge Richard Roberts of Washington federal court rejected the government’s argument, saying the Justice Department’s position in the case is “contrary to both law and common sense.” He granted summary judgment in favor of Kaufman. Click here for the ruling.

The “precise question here is whether the United States was in a state of war in 2004 or 2008 when Kaufman made his renunciation requests,” Roberts wrote. “There can be no genuine debate about that.”

Congressional hearings can be an uncomfortable experience for the participants. But at a hearing today on children's online privacy by the Senate subcommittee on Consumer Protection, Product Safety and Insurance, the harshest words were reserved for those who were absent.

Google Inc. and Apple Inc. both declined invitations to participate, though Facebook Inc. and Microsoft Corp. dutifully sent representatives.

"I do not appreciate the fact that Apple and Google are not here,” said Sen. Jay Rockefeller IV (D-W. Va.), chairman of the Commerce Committee. “Was it too expensive to send an associate legal counsel? They couldn’t afford the plane tickets?”

“I have this power of subpoena that I’d absolutely love to use, but I haven’t yet,” he continued. “It was a stupid mistake for them not to show up, and I say shame on them.”

Sen. Mark Pryor (D-Ark.), who chairs the subcommittee, agreed. “We asked Apple and Google, and they declined,” he said. “It’s unfortunate because they are major players, and we are going to continue to have a long, in-depth conversation in this area.”

The hearing focused on how well the 1998 Children’s Online Privacy Protection Act, or COPPA, is working, and whether Congress should amend the statute. The Federal Trade Commission enforces the law, and is currently reexamining COPPA’s implementation and effectiveness.

Jessica Rich, deputy director of the FTC’s Bureau of Consumer Protection, testified that the agency is considering questions such as whether the definition of the Internet is adequate given the rise of technology such as mobile communications, whether rules about what constitutes personal information should be expanded, and how to authenticate parental consent allowing children to disclose information.

Facebook Director of Public Policy Timothy Sparapani said that the social networking site does not allow users under age 13, but “takes seriously our responsibility to protect and enhance the online safety of our teen users.” This includes features that “substantially reduce the visibility of minors to those they do not know.... Facebook was built with the requirements of the Child Online Privacy Protection Act in mind.”

Ten Washington-based lawyers will be among the recipients of the Burton Awards for Legal Achievement, which will be presented at the Library of Congress on June 14. The annual awards, now in their 11th year, honor the year’s best legal writing.

This year, the Burton Foundation is honoring 30 papers by lawyers at 30 law firms.

The nonprofit foundation was founded by Sagat Burton partner William C. Burton, an "outspoken advocate" of plain language and modernized legal writing, according to the Burton Awards Web site.

Applications for the awards were submitted by the managing partners of the nation’s 100 largest law firms, as well as by law school deans. The winners were chosen by professors from Harvard Law School, the University of Pennsylvania Law School and the University of Michigan Law School, among others.

The 10 Washington-based lawyers are as follows.

Christopher Tierney, an associate with Cadwalader, Wickersham & Taft, is one of two authors of "Have Economic Times Expanded Reach of the Foreign Corrupt Practices Act?"

Michael Remington, a partner at Drinker Biddle & Reath, and Philip Cardinale, an associate, wrote "User-Generated Content, Online Fair Use and the DMCA’s ‘Good Faith’ Requirement."

David Kelly, a partner at Finnegan, Henderson, Farabow, Garrett & Dunner, and Lynn Jordan, of counsel, wrote "Twenty Years of Rogers v. Grimaldi: Balancing the Lanham Act with the First Amendment Rights of Creators of Artistic Works."

John Heintz, a partner at Kelley Drye & Warren, and Elizabeth Johnson, an associate, were two of the three authors of "Insurance Coverage for Climate Change Suits: The Battle Has Begun."

Alexandra Steinberg Barrage, of counsel at Morrison & Foerster, is one of the three authors of "SemCrude, Setoff, and the Collapsing Triangle: What Contract Parties Should Know."

Jay Silberg, a partner at Pillsbury Winthrop Shaw Pittman, is one of two authors of "Nuclear Waste Is Piling Up."